The National University of Singapore Faculty of LawCentre for Asian Legal Studies

in collaboration with the

The University of Texas at Austin

invite submissions for

Symposium on “When is a Constitutional Amendment Illegitimate?”

The National University of Singapore (NUS)Faculty of LawMarch 19-20, 2020

Convened by

Jaclyn Neo (NUS)Kevin Tan (NUS)Richard Albert (Texas)

Submissions are invited from early-career scholars—including post-doctoral fellows, graduate students, and faculty whose full time appointment was no longer than five years ago—for a symposium on “When is a Constitutional Amendment Illegitimate?,” a foundational question at the center of the study of constitutional change.

Convened by Jaclyn Neo (NUS),
Kevin Tan (NUS), and Richard Albert (Texas), this symposium will be held on the
historic campus of The National University of Singapore Faculty of Law on March
19-20, 2020. It is the intention of the conveners to publish a selection of
papers in a peer-reviewed edited volume with an academic press.

Subject-Matter
of the Symposium

There has recently been an
explosion of scholarship interrogating whether constitutional amendments can be
unconstitutional. This is not just an academic inquiry—courts all over the
world in Africa, Asia, Europe, and the Americas have engaged with and, at times,
applied the doctrine of unconstitutional constitutional amendment to check
political actors seeking substantially to change the constitution. This area of
inquiry raises critical questions about the relationship between legality and
legitimacy. Indeed, a central pillar of the unconstitutional constitutional
amendment doctrine is that a procedurally valid amendment is nonetheless
illegitimate. Constitutionality, in these cases, therefore becomes tied to
ideas about legitimacy.

However, legitimacy is a
complex and multidimensional concept. Fallon, for instance, points to three
forms of legitimacy: legal, sociological, and moral. Legitimacy has also been
conceptualized as rightfulness, appropriateness, and more. While legality is
only one criterion for legitimacy, it is by no means the only one. For this
reason, one may even envisage an illegal constitutional amendment as
legitimate. The Ackermanian theory of constitutional moments suggests the
possibility of constitutional amendment through formally illegal procedures
that are legitimated by overwhelming expressions of popular approval. Along the
same lines, the Fifth French Republic has lived its own encounter with
illegality—the 1962 referendum on direct presidential election using Article 11
instead of Article 89 to amend the Constitution—in the face of which the
Constitutional Council declined to exercise jurisdiction to evaluate the claim
that the amendment had been illegal.

In addition, one may
conceptualize certain amendments as legitimate by one criterion and
illegitimate by another. Besides the possible dissonance among the legal,
sociological, and moral dimensions of legitimacy, it is also possible that
legitimacy depends on which theory or vision of the constitution to which one
is committed. Accordingly, the question of legitimacy of constitutional
amendments is one that bears closer examination.

This Symposium invites
submissions that go beyond current inquiries focused on the judicial doctrine
of unconstitutional constitutional amendment to explore other questions and
controversies that the practice of constitutional amendment raises for the
concept of legitimacy. Many questions present themselves for inquiry. For
instance, where reformers have turned to formally illegal procedures to amend the
constitution, how have they been able to validate these amendments as
legitimate, or not? How have competing conceptions of legitimacy of
constitutional amendments been resolved or otherwise? What do we mean by
legitimacy and how is it measured—and by whom—in your jurisdiction(s) under
study.

Comparative studies are welcome,
as are single-jurisdiction studies. Preference will be given to submissions
that do not take a court-centric approach, that deprioritize the well-known
American and French cases, and that shed new and needed light on this subject.

Structure
of the Symposium

This
symposium will feature a small number of papers. Each paper will be the focus
on an intensive workshop involving all symposium participants. The purpose of
this structure of the program is to devote significant time to each submission
in order to prepare it for submission for peer-review and ultimately for
publication. All symposium participants will have read all submissions prior to
the program in order to facilitate a robust and constructive discussion on each
submission.

Eligibility

Submissions are invited from
various disciplines (including history, law, political science, sociology).
Submissions are welcomed on any subject related to the subject-matter of the
program identified above. Submissions may take comparative, doctrinal, empirical,
historical, philosophical, sociological, theoretical or other perspectives.

Submission
Instructions

Interested scholars should
submit a title and abstract no longer than 500 words by September 15, 2019 via
this link. The abstract will form the
basis of the pre-conference draft (no longer than 10,000 words (all notes
included)) to be submitted by 4pm, New York time, on March 1, 2020 in both Word
and PDF formats.

Notification

Successful
applicants will be notified no later than October 31, 2019.

Costs

There is no cost to participate
in this symposium. Group meals will be generously provided by organizers. Limited
funding may be available for successful participants.

Richard Albert is the William Stamps Farish Professor in Law and Professor of Government at the University of Texas at Austin. Author of Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019), his scholarship on constitutional change has been translated into Chinese, French, Hungarian, Portuguese, Russian, and Spanish. He has held visiting faculty appointments at Yale University, the University of Toronto, the Externado University of Colombia, and the Interdisciplinary Center Herzliya. He holds law and political science degrees from Yale, Oxford, and Harvard and is a former law clerk to the Chief Justice of Canada, where he was born and raised.

Jaclyn L. Neo
is an Associate Professor of Law at the National University of Singapore (NUS).
She is a graduate of NUS Faculty of Law, and Yale Law School. She is the sole editor of Constitutional Interpretation in Singapore:
Theory and Practice (Routledge, 2017) and co-editor of Pluralist Constitutions in Southeast Asia (Hart, 2019), and Regulating Religion in Asia: Norms, Modes,
and Challenges (CUP 2019). Jaclyn
has also served as a guest editor for the Singapore
Academy of Law Journal, the Journal
of Law, Religion, and State, the Journal
of International and Comparative Law, and the Journal of Comparative Law. Her
work has been cited by the Singapore courts and the Supreme Court of India. Jaclyn
has held visiting faculty appointments at the Cluster of Excellence ‘The
Formation of Normative Orders’ at Frankfurt University, University of Münster,
University of Trento, Melbourne Law School, and will be appointed to the
Princeton faculty for the fall semester of 2019.

Kevin
YL Tan specializes in Constitutional and
Administrative Law, International Law and International Human Rights. He
graduated with an LLB (Hons) from the Faculty of Law at the National University
of Singapore and holds an LLM and JSD from the Yale Law School. He currently
holds Adjunct Professorships at the Faculty of Law, National University of
Singapore (NUS) as well as at the S Rajaratnam School of International Studies,
Nanyang Technological University (NTU) where he teaches constitutional law,
international law and international human rights. He has published widely
in his areas of specialization and has written and edited over 40 books on the
law, history and politics of Singapore. From 1998-2000, he was Chief Editor of
the Singapore Journal of International and Comparative Law and
from 2000-2003 was the journal’s Adjunct Editor. He has also served previously
as Editor-in-Chief of the Asian Yearbook of International Law
(2010–2017) and is currently Executive Editor of the Asian Journal of
Comparative Law (since 2016) and Editorial Board member of the Korean
Journal of International and Comparative Law (since 2013). Kevin also
serves on the Board of Governors of the Human Rights Resource Centre (HRRC).

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